RTC COMMER. LOAN TRUST 1995-NP1A v. WINTHROP MGMT.

• Decision Date: 15 April 1996
• Docket Number: No. 3:96CV117.,3:96CV117.
• Citation: 923 F. Supp. 83
• Parties: RTC COMMERCIAL LOAN TRUST 1995-NP1A, a Delaware business trust, Plaintiff, v. WINTHROP MANAGEMENT, a Massachusetts general partnership, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

923 F. Supp. 83

RTC COMMERCIAL LOAN TRUST 1995-NP1A, a Delaware business trust, Plaintiff, v. WINTHROP MANAGEMENT, a Massachusetts general partnership, Defendant.

No. 3:96CV117.

United States District Court, E.D. Virginia, Richmond Division.

April 15, 1996.

James S. Crockett, Jr., Mays & Valentine, Richmond, VA, for plaintiff.

Stanley Knight Joynes, III and William Anthony Broscious, LeClair, Ryan, Joynes, Epps & Framme, Richmond, VA, for defendant.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, Senior District Judge.

This matter is before the Court on the defendant's motion to dismiss and motion to vacate the Court's order of March 20, 1996. Also before the Court are the plaintiff's motion for leave to file an amended complaint and motion to shorten time for defendant to respond to plaintiff's motion. This case presents the question of whether the Resolution Trust Corporation ("RTC"), when assigning its rights to delinquent notes, can assign its right to sue in federal court under the Financial Institutions Reform, Recovery and Enforcement Act ("FIRREA") (codified in scattered sections of Title 12, United States Code) and associated legislation, specifically 12 U.S.C. § 1821(d)(17)(A). The Court holds that the right to sue in federal court is not assignable. For the reasons stated below, the defendant's motion is granted for lack of jurisdiction and the case and remaining motions are therefore dismissed.

Facts and procedural background.

This case grows out of the savings and loan debacle and the resulting federal bailout that created RTC, a federal entity. As is typical of this preliminary stage of a case, and even more typical of savings and loan cases, most facts are still in dispute or unknown. The following facts are merely the rough outline necessary for the Court's decision.

The RTC itself has now ceased operations, but before doing so it assigned its assets to private investors such as those controlling the plaintiff, RTC Commercial Loan Trust 1995-NP1A ("Loan Trust"). In essence, the agreement between RTC and Loan Trust assigned "all of RTC's right, title and interest in and to the Assets," those Assets being delinquent commercial loans. The Loan Trust received the right to first, be fully compensated for costs of collection, and second, to retain one-half of all remaining proceeds from its private efforts to collect on the obligations. Although Loan Trust must remit the other half of the collection proceeds to the United States, the parties agree that the United States is not a party of the plaintiff organization and is not a party in interest to this case.

The note that creates the instant dispute was originally made between Investor Savings Bank, F.S.B. of Richmond, Virginia and Winthrop Southeast Limited Partnership. That partnership and Winthrop Management are two of a consortium of related investment and management entities sharing, among other attributes, the same address and the names "Winthrop" or "Southeast." The note was secured by an income stream generated by rental properties managed by the defendant, but only by that portion of the income which passed through the defendant's hands; most significantly, that note was nonrecourse. The result, alleges the defendant, is that when Winthrop Management ceases to manage the rental properties, the security evaporates.

This last event has now occurred. After Investor Savings Bank became insolvent, RTC assumed its rights and began a long effort to collect on the note. Those efforts were unsuccessful and RTC assigned the note to the plaintiff. The plaintiff filed this suit, alleging diversity jurisdiction, and then served the defendant via the Secretary of the Commonwealth on February 16, 1996. In what may charitably be described as a coincidence, Winthrop Management was then terminated. Southeastern Income Properties Limited Partnership, by its general partner Winthrop Southeast Limited Partnership, sent a notice of termination to Winthrop Management and replaced the defendant with Insignia Management, a company whose affiliations to the Winthrop group are still in dispute. The notice of termination is dated March 15, a Friday, and took effect March 18. Defendant's answer was filed that Monday as well.

Informed late of this development, Loan Trust moved to protect its collateral. Loan Trust appeared before the Court for a temporary restraining order on March 20 and the Court entered an order appointing an emergency receiver. The parties returned on March 21 on the defendant's motion to dismiss for lack of jurisdiction. Winthrop Management alleged that the parties were non-diverse. The Court stayed its order and directed the plaintiff to respond. A flurry of motions and affidavits followed and the parties now stipulate that diversity jurisdiction is improper, since both the plaintiff and Southeastern Income Properties Limited Partnership¹ are Delaware entities. The plaintiff now asserts federal question jurisdiction and has moved to amend by adding new defendants and a claim under one of RTC's governing statutes, 12 U.S.C. § 1821(d)(17)(A). The jurisdictional issue is now squarely before the Court.

Finally, the document which assigned RTC's rights has itself become an issue. The plaintiff claims that the assignment provisions, coupled with a section entitled "Reservation of Rights," assigned all of RTC's rights to Loan Trust. The plaintiff claims that included in those rights is the right to sue under 12 U.S.C. § 1821(d)(17)(A) and the right to sue in federal court. The plaintiff has tendered the affidavit of David B. Iannorone, counsel to the Federal Deposit Insurance Corporation ("FDIC"), purporting to interpret the assignment clauses in this fashion. Loan Trust argues that the reservation of rights section reserves to RTC only the right to sue bank officers for fraud on the FDIC; all contractual rights under the notes, it claims, were validly transferred. The defendant claims that the assignment contract is clear enough to permit no parol evidence, and that either no rights or no federal-claim rights were assigned.

Analysis.

1. Defendant's motion to dismiss for lack of jurisdiction.

For purposes of the motion to dismiss, the Court assumes from the clear language of the statute², without deciding the point, that the RTC did attempt to assign its rights to sue in federal court under 12 U.S.C. § 1821(d)(17)(A). Is such an assignment possible?

Actions commenced by the RTC itself confer automatic jurisdiction by means of 12 U.S.C. § 1441a(l):

Power to remove; jurisdiction. (1) In general. Notwithstanding any other provision of law, any civil action, suit, or proceeding to which RTC is a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction over such action, suit or proceeding.

Since § 1821(d)(17)(A) provides no specific jurisdictional language, the general statement of § 1441a(l) controls.

The plaintiff has cited no section of FIRREA which explicitly permits assignment of automatic federal jurisdiction. Instead the plaintiff at oral argument cited a variety of cases on a similar question, the ability of the RTC and FDIC to assign its right to avoid defenses under the D'Oench, Duhme rule. It is to that rule that the Court first turns.

The rule takes its name from D'Oench, Duhme & Co., Inc. v. F.D.I.C., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). That case, grounded in federal common law, held that a debtor is estopped from asserting any defense based on a side agreement that would tend to mislead a federal insurance agency about the terms of the insured note. Id., cited in CMF Virginia Land, L.P. v. Brinson, 806 F.Supp. 90, 92 (E.D.Va.1992). Congress supplemented the doctrine by enacting 12 U.S.C. § 1823(3), which established a four-prong test for invalidating debtors' secret-agreement defenses. Both D'Oench, Duhme as common law and § 1823(e) have been extended to third parties who, like Loan Trust in the present case, purchase delinquent notes from RTC. CMF Virginia Land, 806 F.Supp. at 93. The question thus becomes clear: should D'Oench, Duhme be extended not only to the secret agreement context, but also to allow assignment of the right to sue in federal court under § 1821(d)(17)(A)?

At least two courts have tread this ground before. One, an unreported disposition in a somewhat analogous case, found no federal question jurisdiction. Vanderbilt Mortgage & Finance Co. v. Acceptance Insurance Company, 1996 WL 87224 (E.D.La.1996). Vanderbilt Mortgage involved an RTC assignment of "all its right, title and interest" to a trust of mobile home loans. The plaintiff claimed that the assignment allowed the plaintiff, a private party, to remove to federal court under 12 U.S.C. § 1441a(1), RTC's general removal provision for FIRREA. Although the court found that the plaintiff had a colorable claim for removal to federal court, and thus attorney's fees against it were inappropriate, the court found that RTC's § 1441a(1)(1) removal rights had not been assigned. The plaintiff's claims were remanded as state causes. In contrast to Vanderbilt Mortgage stands National Enterprises, Inc. v. Smith, 892 F.Supp. 948 (E.D.Mich. 1995). National Enterprises involved an RTC assignment of a yacht lease to a private plaintiff. Again, the assignment transferred "all of RTC's interest ... including all right to collect payments due ..." The court examined the policy behind D'Oench, Duhme, including its codification in § 1823(e), and extended the doctrine explicitly:

as I examine the policy involved in the creation of the RTC and the D'Oench, Duhme doctrine, it is clear that this is a case that arises under the laws of the United States and that the RTC can and did assign the right to initiate suit on this Lease in a federal forum. This court has subject matter jurisdiction ...

Id. at 951. It appears that the issue is one of first impression in the Eastern District of...